Judicial elections, democratic appointment (e.g., senate confirmation), and the Missouri Plan (a/k/a "merit selection")

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Sunday, December 28, 2014

California Supreme Court Appointments by Governor Jerry Brown

California's supreme court nominating process is an unusual form of democratic appointment because the governor's nominees are confirmed, not by the state senate, but by a three-person "Commission on Judicial Appointments" comprised of the state's Chief Justice, Attorney General, and a senior presiding justice of the state's Court of Appeal. 

But it is still democratic appointment so it functions well to gradually move the court left or right with the long-term inclinations of the citizenry.  And if the court moves too far for the citizenry's tastes, the voters can remove judges at a retention election, which is what happened the first time Jerry Brown was governor of California.  As the NY Times puts it, "
he set out to reshape the powerful California Supreme Court by appointing its first female chief justice. But his pick, Rose Bird, had never served as a judge before and came to be perceived as a liberal ideologue. Ms. Bird, along with two other judges Mr. Brown named to the court, was recalled by voters in an election in 1986."

It is now nearly 40 years later and Brown is again governor and again has named three people to the seven-member Supreme Court — the latest confirmed on Monday.  Of these three, the NY Times writes,  "not one had a day of judicial experience: Two are law professors and the third is an associate attorney general in the Justice Department. They are all graduates of the same law school — Yale — which also counts among its alumni a California lawyer who made a career in politics, Mr. Brown.
Mr. Brown’s most recent choice, Leondra R. Kruger, the associate attorney general, lives in Washington and has never practiced law in California."

More from the Times "Under California law, the governor nominates justices, and, assuming they are approved by the commission, they appear on the ballot every 12 years for an up-or-down vote."

Other views of California judicial selection including Brown's nominee's to the CA SCT.

Friday, December 12, 2014

Criticism of Alabama's Judicial Elections

The Montgomery Advertiser writes "Partisan judicial races harm state's economy."

"Partisan judicial elections create the perception – and often the reality – that the judicial system is not uniformly fair, that the fund-raising required to run campaigns creates a favored class of contributors who might get special treatment in the courts. "

Unfortunately, the Advertiser advocates a vague "merit selection" without addressing the key question of who picks the pickers and without even mentioning the alternative of senate confirmation.

Thursday, December 11, 2014

Tennessee Voters Amend Constitution to Adopt Legislative Confirmation of Appellate Judges

Tennessee voted 61 to 39 last month.  This is the culmination of a long effort to reform a strange situation in which the state constitution required all judges to be elected, yet, appellate judges were selected by a nominating commission system, which was then changed to a different nominating commission system.  Finally, now the constitution has been amended to a "federal model" system in which the legislature confirms the governor's nominee.

The new constitutional provision in Article VI, Section 3 reads:

Judges of the Supreme Court or any intermediate appellate court shall be appointed for a full term or to fill a vacancy by and at the discretion of the governor; shall be confirmed by the Legislature; and thereafter, shall be elected in a retention election by the qualified voters of the state. Confirmation by default occurs if the Legislature fails to reject an appointee within sixty calendar days of either the date of appointment, if made during the annual legislative session, or the convening date of the next annual legislative session, if made out of session. The Legislature is authorized to prescribe such provisions as may be necessary to carry out Sections two and three of this article.

Thursday, November 27, 2014

Publicly-Financed Judicial Campaign in New Mexico

The Albuquerque Journal reports the first Republican to be elected to a state appellate court in 12 years is also the first publicly financed candidate to be elected to an appellate court since public financing became available to statewide judicial candidates in 2008.  It was the first time both candidates in a contested appellate court race opted to fund their campaigns with public rather than private dollars.  "Only candidates in partisan elections for the appellate courts are eligible for public financing. Not eligible are judges who have been previously elected and are running in retention elections, in which voters cast “yes” or “no” ballots on keeping them on the bench."

Saturday, November 22, 2014

Do Judges Ever Lose Retention Elections?

Sitting judges nearly always win retention elections because such elections have no opposing candidates. The voters merely get to choose whether to retain this judge and most voters have never heard of most judges on the ballot. However, the rare judge sometimes loses even this sort of election.  It just happened in Arizona for the first time since 1978.

Thursday, November 6, 2014

Montana Supreme Court Election Most Expensive on Record

The NY Times reports on the "most expensive judicial race on record in Montana."  According to the Times, "conservative groups have spent about $640,000 — $469,000 by a political action committee financed by the Republican State Leadership Committee and $170,000 by Americans for Prosperity".  "In response, a political action committee financed largely by Montana trial lawyers and unions has spent $475,000."

The big picture: "Corporate interests, who say they are trying to preserve jobs and create growth, and trial lawyers, who say they represent the voiceless against the wealthy and powerful, have long gone head to head in judicial elections."

Sunday, November 2, 2014

Politics, Ideology and State Supreme Court Justices

Ohio Supreme Court Justice Judith L. French, an appointed Republican seeking to retain her seat in the Nov. 4 election, said at a GOP rally “I am a Republican and you should vote for me. You’re going to hear from your elected officials, and I see a lot of them in the crowd. Let me tell you something: The Ohio Supreme Court is the backstop for all those other votes you are going to cast. Whatever the governor does, whatever your state representative, your state senator does, whatever they do, we are the ones that will decide whether it is constitutional; we decide whether it’s lawful. We decide what it means, and we decide how to implement it in a given case. So, forget all those other votes if you don’t keep the Ohio Supreme Court conservative,” French said.

I like the frank recognition that state supreme courts can overrule the legislature and governor and the implicit acknowledgement that a justice's political philosophy can influence her rulings. I elaborate on these points in Originalism, Balanced Legal Realism and Judicial Selection: A Case Study


Wednesday, October 29, 2014

"'soft on crime' attack ads are often the best means of removing from office justices they oppose"

Emory Law Professors Joanna Shepherd and Michael Kang, published by the progressive American Constitution Society (a progressive organization), write "as television advertising in a state goes up, state’s judges are more likely to decide criminal appeals against criminal defendants. The analysis also demonstrates that Citizens United exacerbated the influence of money in judicial elections influence on judicial decision making. In the 23 states that had bans on corporate or union independent expenditures, Citizens United’s lifting of these bans is associated with a decrease in justices voting in favor of defendants."

Monday, October 27, 2014

Retention Elections for Kansas Supreme Court

The Kansas Republican Party's chairman and GOP Gov. Sam Brownback last week endorsed efforts by group of crime victims, Kansans for Justice, to get voters to remove two of the court's seven justices in the Nov. 4 election, AP reports.  The two, Justices Lee Johnson and Eric Rosen, were appointed by former Democratic Gov. Kathleen Sebelius.

As in other states, judges almost never lose retention elections in Kansas, the story continues: "Previously, elections haven't been much of a threat to justices' careers. Since the state stopped electing them to the bench in 1960, voters haven't removed any justice. None has received a "yes" vote of less than 62 percent. But the lowest margins were recorded in 2010, when the anti-abortion group Kansans for Life waged a "fire Beier" campaign against Justice Carol Beier."

Retention elections, with no opposing candidate, are designed to be easy for incumbents to win, as I explain more toward the end of this law review article

Friday, October 24, 2014

KS Gov. Brownback Endorses Removal of Kansas Supreme Court Justices

Republican Gov. Sam Brownback said he's voting against retaining state Supreme Court Justices Lee Johnson and Eric Rosen.  In contrast, most Kansas lawyers and judges want to retain them, according to a survey by a committee of bar leaders and leaders of progressive groups such as Kansas Appleseed, Mainstream Coalition, and League of Women Voters.

This has long been the pattern around the country.  When judges are controversial, it's usually conservatives who want to remove them, while progressives and the bench and bar want to retain them.  That was true in Iowa a few years on same-sex marriage and also true going back at least as far as California's Rose Bird in the 1980's.



Wednesday, October 22, 2014

Kansas Gov. Debate Features Judicial Selection

Kansas Gov. Sam Brownback "assailed Democratic challenger Paul Davis Tuesday as a liberal who would appoint Kansas Supreme Court justices overly sympathetic to violent criminals, and Davis accused the Republican incumbent of trying to exploit a high-profile Wichita murder case to boost his re-election chances."  AP explains "The confrontation during their fourth and final debate came on the same day Brownback's campaign released a television ad referencing brothers Reginald and Jonathan Carr, whose death sentences for a quadruple homicide were vacated by the state Supreme Court in July."

The following sentence of this article unfortunately departs from good journalism to use one side's talking points in describing the current Kansas Supreme Court selection system.  "Brownback has long sought more power to directly appoint justices rather than use a longstanding merit system in which a committee comprised of lawyers and members of the public send up suggestions. The system was changed during his administration to give him more power over appointments to the Kansas Court of Appeals, but it takes a constitutional amendment to give him similar authority to appoint justices to the Kansas Supreme Court."

Where is the evidence that the current Kansas system produces more "merit" in the judiciary than the senate confirmation system advocated by Brownback, me and the Framers of the US Constitution (which has had a senate confirmation system for centuries)?  Responsible advocates of that system have stopped calling it "merit selection" because that phrase is just one interest group's propaganda. See pp. 760-62 of the article linked here.

And why describe the committee as "comprised of lawyers and members of the public", which sounds so reasonable by hiding the key issue of who selects the committee?  Why not more accurately explain that the committee is comprised of 5 lawyers selected by their fellow lawyers (the bar) and four non-lawyers selected by the governor?  Having the lawyers selected in such an undemocratic way is the controversial part of the current system but you'd never know that from this article.

Also, the article is simply wrong in saying the committee "send[s] up suggestions."  They are not "suggestions."  They are requirements.  The governor must pick one of the committee's 3 favorites.
The committee (actually "commission") is very powerful and that's why the undemocratic selection of it is so troubling.  But you'd never know that from this article.  Nor would you know that Kansas is the only state that it allows its bar so much power in picking its commission.

More about Kansas Supreme Court selection here and here

Tuesday, October 21, 2014

Unconstitutional Judicial Selection in Indiana?

The Indy Star reports that a federal court ruled the state law governing how judges are elected in Marion County is unconstitutional.  Apparently, the Republican and Democratic parties each nominate half of the candidates eligible to sit on the court so candidates appearing on the general election ballot are almost sure of victory.

Unfortunately, the only alternative to this system discussed in the article is the Missouri Plan, which the article uncritically calls "merit selection."

Monday, October 20, 2014

Against the Missouri Plan (in MO, TN, KS, etc.)

Northwestern University Law Professor John McGinnis expresses views very similar to mine:

I am no fan of subjecting judges to elections. In my view, the far superior system is one, like the federal structure,  in which the elected chief executive of the jurisdiction appoints judges for a term of years upon confirmation of a legislative body. But judicial elections are necessary, if the appointments are made according to so-called Missouri plans, an arrangement that permits  lawyers to create a power center of their own in the judiciary.  Indeed, while elections provide some corrective to the democratic deficit of those plans, they are an insufficient corrective, because voters do not  generally focus on judicial elections. The better solution would be trade the end of the judicial elections for the termination of Missouri plans.

Wednesday, October 8, 2014

"Impartial" information for voters in judicial elections.

Election day is about a month away and that's true as well of judicial elections.  "In November, eight states will choose supreme court justices in contested elections, and justices will stand for retention in fourteen states."  And in some of these states Malia Reddick writes "judicial performance evaluation (JPE) programs are providing citizens with impartial assessments of judges’ performance on the bench."  In Kansas, the JPE program was defunded two years ago.

Sunday, October 5, 2014

Bill to Change Judicial Mandatory Retirement Age

A committee of the New Jersey Legislature on Sept. 22 recommended passage of a proposed constitutional amendment and related bills that could lead to increasing the retirement age for the state’s judges from 70 to 75.

Unconstitutional to Forbid Judicial Candidates from Soliciting Campaign Contributions?

Is it constitutional to prevent candidates in judicial elections from personally soliciting campaign contributions?  The Supreme Court may tell us when it rules in Williams-Yulee v. Florida Bar.

Tennessee Judicial Retention Elections and Judicial Selection Amendment 2

Tennessee Judicial Retention Elections and Amendment 2 (under which that the governor would appoint Tennessee appellate court judges, subject to legislative confirmation) are the subject of an upcoming Federalist Society event involving speakers:

  • John Ryder, Harris Shelton Hanover Walsh, PLLC, and General Counsel of the Republican National Committee
  • Prof. Steve Mulroy, University of Memphis Cecil C. Humphreys School of Law

  • Hosted by the Memphis Lawyers Chapter     

    Monday, September 22, 2014

    A European View of Judicial Selection

    The Judge and His Hangman: Judicial Selection and the Accountability of Judges
    by Bertrand Claude Lemennicier of Paris Sorbonne Université, and Nikolai Wenzel of
    Université Paris II.

    The Abstract:    

    Who gets to determine rights and justice? Which mechanism of judicial selection and accountability is optimal? There is no easy answer. If judges are independent experts, nominated and evaluated by their peers, they will be immune from the pressures of electoral rent-seeking, but unaccountable to the people. If judges are elected, they will be democratically accountable, but subject to the redistributive pressures of the ballot box. If judges are nominated and controlled by politicians, they will face the temptations of bureaucratic self-interest and will not be democratically accountable, but they will be shielded from the Public Choice problems of elections. This paper uses the death penalty in the United States, to measure and compare the impact of different methods of judicial selection. In the end, there is no optimal solution – at least not within a judicial monopoly that ignores the voices of the actual participants.

    Tuesday, September 16, 2014

    Today's Radio Discussion of Kansas Supreme Court Selection

    Today Kansas City Public Radio says "Gov. Brownback's Selection Of Stegall Stirs Debate Over Judge Selection Process" and "A recent change in Kansas law has re-ignited the debate on how judges are selected to the bench. In this edition of Up to Date, Steve Kraske examines the methods for seating judges, and who should hold the final say in how they are chosen.
    Radio discussion guests:
    Stephen Ware is a Professor of Law at the University of Kansas.
    Matthew Menendez is counsel for the Democracy Program at the Brennan Center for Justice at the New York University School of Law."

    Sunday, September 14, 2014

    Obama's Judicial Legacy

    The New York Times says:

    Democrats have reversed the partisan imbalance on the federal appeals courts that long favored conservatives, a little-noticed shift with far-reaching consequences for the law and President Obama’s legacy.

    For the first time in more than a decade, judges appointed by Democratic presidents considerably outnumber judges appointed by Republican presidents. The Democrats’ advantage has only grown since late last year when they stripped Republicans of their ability to filibuster the president’s nominees.
     
    “It’s no surprise that President Obama has been able to transform the ideological makeup of the courts — that happens when you have six years to pick judges and your party controls the Senate,” said Edward Whelan,

    Judicial Elections vs. Federal Method (esp. in Florida)

    The Miami Herald editorializes:

    A member of the Miami Herald Editorial Board was present as the 20-plus members of the Florida Judicial Nominating Commission quizzed and grilled the 15 candidates for 25 minutes each, the final phase of a long process that began in July for the privilege of having their names recommended to Florida’s two U.S. senators.
        
    In this race, voters did not pick the winner; the blue-ribbon panel made up of local legal eagles and community leaders had the honor — and somehow that seemed right and how, perhaps, it should be done for all judicial races.
     The different selection processes for state and federal judges — the first are generally elected, the latter selected — highlighted the anemic slate of judicial candidates and bitter races with plenty of mudslinging that played out in Miami-Dade and Broward last month. Judicial decorum was missing among a number of candidates.  Leaving aside the pros and cons of "mudslinging" in judicial elections, the role of judicial nominating commissions at the federal level raises several interesting questions.  Among them: 1. Who appoints the commission: "the blue-ribbon panel made up of local legal eagles and community leaders"?2. How much deference do Florida's senators give the commissions and why?3. How similar are commissions in the federal system (where ultimate power to select a judge rests with the president and sensate) to commissions in Missouri Plan states in which the commission and governors share power to select judges?

    Read more here: http://www.miamiherald.com/2014/09/04/4328563/the-making-of-a-federal-judge.html#storylink=cpy

    Thursday, September 11, 2014

    Judicial Selection In Tennessee


    Margaret L. Behm & Candi Henry, of Dodson Parker Behm& Capparella, PC, have written Judicial Selection In Tennessee: Deciding'The Decider", 1 Belmont Law Review 143 (2014)
    The abstract:
    The quality of judges and the manner of selecting them matters; this is a basic premise underpinning the rule of law in the United States. From the inception of the United States’ democratic system, the judiciary’s Damoclean Sword has been the threat of subrogation at the hands of the Legislature, and perhaps the easiest way to rattle the sword has been to legislatively interfere with judicial selection — whether by changing the manner of appointment or by simply refusing to fill vacancies. The comments above span the eighteenth, nineteenth, and twentieth centuries, and today in Tennessee the proverbial horse’s hair has never seemed more precarious.

    Friday, September 5, 2014

    Judicial Nominating Commissions

    Some of the most thoughtful advocates of judicial nominating commissions are affiliated with IAALS, the Institute for the Advancement of the American Legal System, at the University of Denver.  Their report, by Malia Reddick & Rebecca Love Kourlis is on this page which says:

    "A commission-based gubernatorial appointment process can offer important benefits to the state judiciary that these other methods may not. First and foremost, those who aspire to be judges need not have political connections, a campaign war chest, or the support of special interests to apply. Rather, the process can create an environment in which the selection decision focuses on candidates’ experience, character, and qualifications, motivating highly qualified candidates to apply. This, in turn, can inspire trust and confidence in the selection process and in the judiciary as a whole among members of the public and the other two branches of government. But the extent to which commission-based appointment achieves these ideals is dependent wholly upon how the commission is chosen and how it functions."


    While I agree with this to some extent, I think a lot turns on how one defines "political connections." For instance, if the bar selects some members of the commission and a candidate's connections within the bar help that candidate win the support of the commission, do we call that use of "political connections"?  A question for advocates of nominating commissions is whether a candidate using connections within the bar is somehow more legitimate or less "political" than using connections with democratically-elected officials.

    Separately, I note that the paragraph just quoted speaks of judging in technocratic terms "experience, character, and qualifications."  Omitted from this is any mention of the lawmaking role of judges, particularly state supreme court justices.  Another question for advocates of nominating commissions is whether they see high court judges as important lawmakers.

    Monday, September 1, 2014

    New Kansas Supreme Court Justice

    Gov.Sam Brownback appointed Caleb Stegall.  He earned his law degree from the University of Kansas School of Law in 1999 and according to the KC Star ranked third in a class of 187.  He served as the elected county attorney in Jefferson County from 2009 to 2011.   He then was Gov. Brownback's chief counsel before being appointed a judge on the Kansas Court of Appeals.

    According to KCUR-FM, Kansas City
    Michael Smith an Associate Professor of Political Science at Emporia State University says Stegall is an interesting choice.
    “He’s a conservative intellectual,” says Smith.

    For more on Caleb Stegall, see here

    Read more here: http://www.kansas.com/news/politics-government/article1323768.html#storylink=cpy

    Read more here: http://www.kansas.com/news/politics-government/article1323768.html#storylink=cpy

    Monday, August 25, 2014

    Michigan Supreme Court Nominees

    As Gavel Grab writes, "Both political parties have nominated their candidates for three seats on the Michigan Supreme Court, kicking off the general election season." See more

    Thursday, August 21, 2014

    Tennessee Supreme Court Justice Supports Democratic Appointment of Justices

    Tennessee Supreme Court Justice Jeff Bivins supports an amendment to the Tennessee Constitution under which that the governor would appoint Tennessee appellate court judges, subject to legislative confirmation, and followed by retention elections. The question is one of four proposed amendments before voters statewide on the Nov. 4 general election ballot.

    Friday, August 15, 2014

    Should Retired Judges be Able to Practice Law?

    Retired judges practicing law raises serious concerns, which is one reason to support judicial retention systems (like life tenure or a long term of years) that keep a judge on the bench until retirement age. Bills to prevent retired judges from practicing law were recently introduced in Puerto Rico.

    Bill Raftery explains:

    two bills contending with the issue of retired judges that would effectively ban the former jurists from practicing law. PC 1270 as introduced would have prohibited a retired Chief Justice or President Judge of the Supreme Court of Puerto Rico from representing any person before a court, administrative or quasi-judicial agency. Prohibits person from providing such courts/agencies legal services. As amended the bill would have allowed a retired justice of the Supreme Court of Puerto Rico to restart their law practice, but prohibited them from appearing in court, administrative proceedings, alternative dispute forums, or generally representing people or corporations in any proceeding. Further, the amended bill provided that the person’s judicial pension is forfeited where such representations take place. It was approved by the full House 10/10/13 and is pending in the Senate Judicial, Security, and Veterans Committee. A similar bill (PC 1311) identical to the original PC 1270 remains in the House Labor and Public Service Retirement Systems Committee.

    Wednesday, August 13, 2014

    Arkansas Judicial Selection

    Discussed here by Bill Raftery.  He provides good information but I wish he'd drop the advocacy phrase "merit selection" for commission based (or "Missouri Plan") selection processes.

    Friday, August 1, 2014

    Kansas Supreme Court Applicants Interview Schedules

    The interviews (Aug. 4 and 5) at the Kansas Judicial Center in Topeka are open to the public but cameras and recording devices are prohibited.  The applicants for the Kansas Supreme Court position are listed here.

    Tuesday, July 29, 2014

    Kansas Supreme Court Selection Issue Stirred by Court's Death Penalty Ruling

    Kansas Senate Majority Leader Terry Bruce said the states' supreme court selection process will “absolutely” be an issue when legislators reconvene in January because of The Kansas Supreme Court’s decision last week to overturn two brothers’ death sentences for a notorious robbery, rape and killing rampage. The Republican said the rulings weren’t surprising — the court hasn’t upheld a death sentence in two decades — and many members of the GOP-dominated Legislature believe the justices have shown an “activist” streak.

    Kansas City Lawyer’s Pro-Democrat Blog Posts Could be an Issue in Judicial Confirmation

    According to the ABA Journal:

    Kansas City lawyer Stephen Bough last posted commentary on a political blog in 2009, but he now has some new readers.

    The Senate Judiciary Committee is considering Bough’s nomination to be a judge in the Western District of Missouri, and his blog is getting a closer look, according to Legal Times (sub. req.). A personal injury lawyer, Bough posted comments favoring Democrats on the blog when he led a group called Committee for County Progress.

    One post expressed hope that voters would oust U.S. Sen. Roy Blunt, R-Mo., who remains in the Senate. Another statement, made in the comments section, said, "You and the 3 other folks who read this blog will agree I shouldn't be a judge.”

    Friday, July 25, 2014

    California Gov. Jerry Brown's Supreme Court Nominees: Diverse and Progressive

    California's supreme court nominating process is an unusual form of democratic appointment because the governor's nominees are confirmed, not by the state senate, but by a three-person "Commission on Judicial Appointments" comprised of the state's Chief Justice, Attorney General, and a senior presiding justice of the state's Court of Appeal.

    But it is still democratic appointment so it functions well to gradually move the court left or right with the long-term inclinations of the citizenry.

    As Dan Walters writes in the Sacramento Bee:

    This week, Brown nominated Stanford law professor Mariano-Florentino Cuéllar, whose record indicates he will be a judicial liberal, to succeed Marvin Baxter, the court’s most obviously conservative member.

    Having already named another law professor, Goodwin Liu, to the court, and with another vacancy still to be filled, Brown’s appointees will soon hold three of the seven seats. Because his appointees are in their early 40s, they’ll be making new law for many years.

    The remaining four Republican appointees, including Chief Justice Tani Cantil-Sakauye, are relatively moderate. So the Brown appointees will tilt the court to the left with the likelihood that Brown will have one or two more appointments in his second term.

    Dan Walters'  piece shows a strong sense of history and Gov. Brown's emphasis on ethnic diversity.

    Saturday, July 19, 2014

    Voter Knowledge of Judge Candidates’ Judicial Philosophies

    Voter Knowledge of Candidates’ Judicial Philosophies by Craig M. Burnett of the University of North Carolina and Lydia Brashear Tiede, University of Houston - Department of Political Science.  The Abstract:      

    Judicial elections are typical “down ballot” elections, rarely capturing the interest of most voters. To help distinguish themselves at the polls, judicial candidates have begun to publish their decision-making philosophies with the apparent hope of informing voters. Using survey data collected during the 2012 elections, we explore how well individuals understand such philosophies.

    Chris Christie's Judge Choices Criticized

    by the conservative Judicial Crisis Network which says "Christie’s definition of a conservative sounds an awful lot like a liberal."
    Christie adviser Mike DuHaime punched back: “They should get their facts straight,” DuHaime said. “Gov. Christie has nominated multiple conservatives to the Supreme Court, but several have been blocked by the Democrat state senate."

    Politico summarizes: "A conservative judicial group is planning to run $75,000 in digital ads during New Jersey Gov. Chris Christie’s trip to Iowa later this week."


    First African-American Missouri SCT Judge Confirmed to Federal Court

    Ronnie White lost senate confirmation vote 15 years ago but wins this week.

    Nan Aron, president of the Alliance for Justice, said the senate confirmation vote "illustrates the importance of last year's changes to Senate rules. Given the Republican track record on judicial nominations in general—and this one in particular—it's not clear that Judge White would have been confirmed if not for reforms allowing a simple majority vote to end a filibuster."


    Monday, July 14, 2014

    Canadian Judicial Selection

    Ottawa Law Professor Rosemary Cairns Way's paper is entitled Deliberate Disregard: Judicial Appointments Under the Harper Government.  The abstract reads:

    This essay examines the apparent disregard of diversity in appointments by the federal government to the Canadian bench. It begins with an examination of the principal academic arguments supporting the claim that Canadians are entitled to a representative bench. After explaining the current federal appointments process, I examine patterns in three identity characteristics of recent appointees (gender, racialization, and professional experience). These patterns suggest, at the least, a failure to pay attention to, and at the most, a deliberate disregard of diversity which is, in my view, inconsistent with constitutional anti-discrimination norms, as well as with both the written and unwritten constitutional guarantee of an independent and impartial judiciary.

    Friday, July 11, 2014

    Kansas Supreme Court Applicants Include Governor's Former Counsel

    As Scott Rothchild puts it, "Six months after having been sworn in as the newest judge on the Kansas Court of Appeals, Caleb Stegall is seeking a promotion to the Kansas Supreme Court."  While Kansas Court of Appeals judges are appointed by the governor subject to senate confirmation, Kansas Supreme Court justices are selected under a system in which a nominating commission (5 of whose 9 members are selected by the bar) screens applicants and submits the names of 3 finalists to the governor.

    The senate confirmation system is compared to the nominating commission system here (short) and here (long)

    Wednesday, July 9, 2014

    Justice Sandra Day O'Connor's Recommended Process for Judicial Selection and Retention

    Retired US Supreme Court Justice Sandra Day O'Connor has released her recommended process for selecting and retaining state court judges. 

    Justice O'Connor has worked closely with IAALS, the Institute for Advancement of the American Legal System.  The IAALS/O'Connor plan:

    "calls for a judicial nominating commission to screen applicants and identify the best qualified candidates, appointment by the governor of one of those candidates, broad-based and objective evaluation of judges’ performance on the bench, and periodic retention elections in which voters have access to judicial performance evaluation results and are able to vote for or against the sitting judge."

    In short, it's the usual Missouri Plan or nominating commission system and, to the credit of Justice O'Connor and IAALS, they avoid calling it "merit selection." Unfortunately, they do not answer the key question: who picks the pickers?  In other words, who selects the nominating commission?  

    Tuesday, July 8, 2014

    US Senate Unanimously Confirms Judge (3d Circuit)

    , writes in The Legal Intelligencer "In a rare move for the U.S. Senate, which has been crippled by its partisan divide, it unanimously confirmed Cheryl Krause for a seat on the U.S. Court of Appeals for the Third Circuit this week."

    Saturday, June 28, 2014

    Judicial Retention Elections in Alaska

    Covered by Alaska Public Media:

    The Alaska Judicial Council has released its recommendations for retention elections this November: "13 of 14 state judges have been given the thumbs up. But one judge, William Estelle, who sits on the bench in Palmer, has not gained Judicial Council approval."

    “Judge Estelle filed 16 untrue affidavits, under oath, from September 2011 through February, 2013, swearing that he had completed or issued decisions in all matters that had been pending before him, for more than six months, when in fact, he had not completed those decisions,”

    Wednesday, June 18, 2014

    Tennessee Judicial Retention Drama

    In August, Tennessee voters will be asked to retain or replace three Supreme Court justices.  NPR says: "The Tennessee Bar Association is all but endorsing three Supreme Court justices sitting for retention elections this year. The group released a poll Friday showing 90 percent of respondents favor keeping the court as it is. The Bar has a policy of not making endorsements in judicial elections. It’s never even polled its members until this year. The association wanted to counter an effort by Lt. Gov. Ron Ramsey to unseat three justices appointed by Democrats."

    Dahlia Lithwick weighs in.

    Wednesday, June 4, 2014

    Selection to the Canadian Supreme Court

    News: "Prime Minister Stephen Harper announced the appointment of a Quebec judge to the Supreme Court of Canada on Tuesday, three months after the top court rejected his previous appointment of Marc Nadon."  Three of the court's nine members must be from Quebec.

    The National Post reports opposition party "justice critic Françoise Boivin said Judge Gascon has a 'stellar reputation' and that he was a 'great nomination' for the high court....Ms. Boivin said she has no concerns about a lack of any confirmation hearing, a process the Conservatives established that gives MPs their only chance to question Supreme Court justices about their legal background."

    Adam M. Dodek, Vice-Dean Research and Associate Professor at the Faculty of Law,
    University of Ottawa (Common Law Section), has written Reforming the Supreme Court Appointment Process, 2004-2014: A Ten Year Democratic Audit



    Thursday, May 29, 2014

    Republicans and Democrats Compromise on New Jersey Supreme Court

    Republican New Jersey Governor Chris Christie decided to re-nominate a Democrat, Chief Justice Stuart Rabner, as part of a deal with the Democratic President of the State Senate, Stephen Sweeney. AP reports Christie will have Sweeney’s support for Republican Judge Lee Solomon’s high court nomination in return.

    This seems to me a great example of a senate confirmation system working as it should.  When the executive and legislative branches are held by different parties, the judicial branch gets judges from each party.  More on the NJ Supreme Court selection process is here

    Wednesday, May 28, 2014

    Comparative Judicial Selection and Judicial Supremacy

    Different nations select their judges differently.  I believe the more lawmaking power judges (particularly supreme court justices) have, the more appropriate for them to be selected in a democratic way.  The United States is the "example par excellence" of judicial supremacy over the other branches, according to Judicial Supremacy: Explaining False Starts and Surprising Successes by University of Washington political scientists Victor Menaldo and Nora Williams.  They write:

    "The example par excellence of judicial supremacy is the United States system. For
    example, in the 2000 case of Bush v Gore the judiciary ruled on the constitutionality of a case
    that had an impact on both the executive and legislative branches. The Supreme Court ultimately
    awarded the contested presidential election George W. Bush. While Al Gore’s party held the
    executive, the losing branch abided by the decision of the judiciary instead of taking what could
    have been dramatic action."

    Friday, May 23, 2014

    Lobbying by Judges and Courts

    Article by Western Carolina University Professor Roger Hartley says:


    While budgets are tight and the needs of adjudication come first, courts need to build capacity to effectively lobby, like other agencies and “model” courts in other states do. We know that state chief justices, state court administrators, and local presiding judges and court managers lobby. In prior work, I suggest that the selection and tenure of court leaders needs to be rethought in some states. Courts need to pay close attention to the political, advocacy, and management skills when selecting chief justices. Short tenure or rotation of court leaders is also a problem, as courts might lose important political capital and relationships built by effective court leaders over time.

    Thursday, May 22, 2014

    Tennessee Judicial Retention Elections

    Tennessee Lt. Gov. Ron Ramsey campaigns against the retention of three sitting state Supreme Court justices.  Channel 5 says "All it would take is one of those seats to give Republicans a majority on the court, which probably would lead to a Republican Attorney General. Getting an attorney general who thinks more like Republican leaders seems to be the lieutenant governor's main motivation."

    Idaho Supreme Court Election

    Results of one contested and one uncontested race.

    Op-ed says:

    Liberal think tank, Center for American Progress, recently graded the ethics laws governing judicial elections in each state. Idaho, and most of the other 39 states with elected judges, got an “F” because state code doesn’t consider cases involving a one-time political backer an automatic reason for recusal, an issue that the American Bar Association has repeatedly blasted. Idaho’s judicial election ethics policy scored the lowest on the organization’s list. That’s especially interesting when you consider a record $33.7 million was spent on judicial elections in the United States in 2012, reports the Washington Post.

    Wednesday, May 21, 2014

    Judicial Selection and Efforts to "Intimidate" Courts Makes the Washington Post

    Are there "disturbing efforts by partisans, politicians and special interests to intimidate our courts" in Oklahoma, Kansas and Missouri?  Yes, argue Ruth McGregor, retired chief justice of the Arizona Supreme Court and Randall Shepard, retired chief justice of the Indiana Supreme Court, in the Washington Post. 

    Here is a reply

    Tuesday, May 20, 2014

    First Female Native American Federal Judge

    Diane Humetewa confirmed by the senate

    Hawaii Judicial Selection

    Good summary by Bill Raftery:

    Hawaii: The state’s Governor (or Chief Justice for District Court) is responsible for appointment for a judge’s initial term from a list prepared by the state’s Judicial Nominating Commission. The pick is then subject to Senate confirmation. However, for subsequent terms, the judge need only return to the Judicial Nominating Commission for reappointment; neither the Governor nor the Senate plays a role. (Hawaii Constitution Art. VI, Sec. 3)

    Vermont Judicial Selection

    Nice summary by Bill Raftery:

    Vermont: For judges of the state’s Supreme and Superior Courts, the Governor makes an appointment subject to Senate confirmation. For subsequent terms, however, the Governor plays no role. Instead, judges submit their names to the legislature where they are vetted by a Joint Committee on Judicial Retention. The judge is automatically reconfirmed “unless a majority of the members of the General Assembly voting on the question vote against continuation in office” (emphasis added, Vermont Constitution § 34 and 4 V.S.A. § 607 & 608)

    Washington Supreme Court's First Openly Gay Justice

    Mary Yu is apparently also the first Asian American and first female Hispanic member of the court.

    AP Reports "Yu was appointed by Gov. Jay Inslee earlier this month. She replaces Justice James Johnson, who announced his retirement last month because of health issues....To keep the seat, she will have to run for election in November to serve the rest of Johnson's term, which was set to expire in January 2017."

    Monday, May 12, 2014

    Why the US Supreme Court is Increasingly Partisan


    Two leading scholars, William & Mary Law Professor NealDevins and Ohio State Political Science Professor Lawrence Baum, write that “Starting in 2010 the Supreme Court has divided into two partisan ideological blocs, with all the Court’s Democratic appointees on the liberal side and its Republican appointees on the conservative side.” 

    Their article, Split Definitive: How Party PolarizationTurned the Supreme Court into a Partisan Court, uses “original empirical research to establish that this partisan division is unprecedented in the Court’s history.”  They “show that it is linked to growing partisan polarization among political elites,” which has “prompted presidents — for the first time ever — to make ideology the dominant factor in appointing Justices.”

    Saturday, May 10, 2014

    California Judicial Selection

    Loyola LA law professor Jessica Levinson explains California judicial selection and opposes judicial elections.  

    She writes in the LA Times:


    Most trial court judges first obtain their positions via the appointment process, and incumbent judges generally are not challenged. In the June elections, 150 of 151 incumbent judges in L.A. County are running unopposed. ....
    In California, Supreme Court judges and appellate judges are appointed by the governor and must be confirmed by the Commission on Judicial Appointments. This panel is composed of the attorney general, the chief justice and a senior presiding justice of the state Court of Appeal.
    Appellate judges must be approved by the voters at the next general election after their appointment, and stand for retention elections at the end of their terms. These are uncontested elections in which the voters decide only whether a judge gets to remain in his or her seat. Appellate judges serve 12-year terms (unless they are serving out the remainder of a vacated term).
    Trial court judges serve six-year terms. For these positions, any attorney who meets the constitutional requirements can file to run for an open seat or to contest a sitting judge.
    For decades, the Legislature has also required that the governor request an investigation of all potential appointees by the State Bar's Commission on Judicial Nominees Evaluation. The commission's recommendations are nonbinding but persuasive.

    Jessica Levinson's views seem to me quite sensible.  She describes the process for appointing California Supreme Court and appellate judges as

     "a strong model for the type of system we should adopt for all state judges. But instead of standing for retention elections in the case of appellate judges, or regular elections in the case of trial court judges, all judgeships could originally be filled by gubernatorial appointment, followed by potential reappointment by the governor, with approval by the Commission on Judicial Appointments."

    Tuesday, May 6, 2014

    NY Times Covers Outside Campaign Spending in Judicial Races

    The paper of record shows a photo of a North Carolina Supreme Court justice carrying campaign signs across the street.  For many of us that's an settling image, which is probably what the NY Times intended, as it's no fan of judicial elections.  For others, I suppose it's a positive image of the powerful being subject to democratic accountability.

    The NY Times writes
    "Judges on higher courts are elected rather than appointed in 22 states, and in 16 more they must face retention elections at some point after their selection, according to Justice at Stake, an advocacy group in Washington. Corporations and political parties — and trial lawyers and unions — seek ideologically compatible state judges, legal experts say, because their rulings can affect redistricting and laws on such key issues as liability, medical malpractice and workers’ compensation."

    More on the NC races' campaign funding here

    More on the NC races here

    Kansas Gov. Brownback to pick Supreme Court Justice under System he Opposes

    To his credit, in my view, Kansas Gov. Sam Brownback wants to move Kansas Supreme Court selection from a particularly extreme version of the Missouri Plan to a democratically-legitimate method of judicial selection, such as the US Constitution's senate confirmation system, which Kansas last year adopted for its Court of Appeals.

    The first vacancy on the Kansas Supreme Court of Gov. Brownback's time in office has just arisen so the governor may be required to use the high-court selection system he opposes.  As the very good state-house reporter John Hanna writes:

    Moritz's confirmation gives conservative Republican Gov. Sam Brownback his first chance to appoint someone to the seven-member Kansas Supreme Court. However, under the state constitution, a nominating commission will screen applications and name three finalists for Brownback, and legislators will have no role after his appointment.

    Thursday, May 1, 2014

    Bi-Partisan Progress Toward Judicial Selection Reform in Tennessee

    Former Tennessee Gov. Phil Bredesen (D) and former Senator Fred Thompson (R) co-wrote an op-ed supporting the constitutional amendment to adopt a democratic appointment method for the state's appellate judges.  Amendment 2, which will be on the ballot in November, would move the state closer to the method of judicial selection adopted in the US Constitution.  As the President nominates federal judges subject to senate confirmation, similarly this amendment would have the Governor nominate judges subject to legislative confirmation. 

    As the op-ed says, Amendment 2 has wide support from a broad array of organizations and officials.  Its chance of passage is encouraging to those of us who have been advocating this model of judicial selection for many years.

    Wednesday, April 30, 2014

    More Money for NC Supreme Court Races

    Justice at Stake says The Republican State Leadership Committee announced that its Judicial Fairness Initiative would fund conservative judge candidates who have conservative ideologies.
    In North Carolina, a group called Justice for All NC has received $650,000 from the Republican State Leadership Committee and has begun airing a TV ad critical of Justice Robin Hudson.

    Tuesday, April 29, 2014

    Kansas Supreme Court Loses Power to Pick Chief Judges of District Courts

    This in a bill that's part of a long battle between legislators and the court.

    Brad Cooper in the Kansas City Star writes  "In a move that some see as violating the state constitution, the new law lets local judges pick chief district judges instead of the high court. The law also would allow local judges, not the state Supreme Court, to manage their own budgets."

    Read more here: http://www.kansascity.com/2014/04/27/4986138/relationship-between-kansas-legislature.html#storylink=cpy

    Campaign Spending for North Carolina Supreme Court Tops $1 Million

    The North Carolina Supreme Court primary on May 6 features incumbent Justice Robin Hudson against challengers Superior Court Judge Eric Levinson and Jeanette Doran in the three-way primary.  The top-two will be on the general election ballot in November. 

    The of $1 million includes spending by candidates and by independent groups. Bert Brandenburg of Justice at Stake says "“What compounds the problem this year is that North Carolina has just done away with its public financing program for judicial elections."

    Monday, April 28, 2014

    President Obama and Senate Democrats Eager to Confirm Judges Before 2014 Elections

    New York Times reports: "With the possibility that Republicans could take the Senate in November, the White House and Senate Democrats are working swiftly to confirm judges to the federal courts in an effort to allow President Obama to leave a lasting liberal imprint on the judiciary."

    Republicans, the Times says, are "deeply resentful of Mr. Obama for encouraging Senate Democrats to end the filibuster on all presidential nominations but those to the Supreme Court."  Nevertheless, Republicans slow confirmations through the “blue slip”, which allows each senator veto power over any judge from his or her state.

    Wednesday, April 23, 2014

    Oklahoma Judicial Selection Reform Criticized

    Tulsa World


    The Tulsa World's Julie DelCour defends status quo against a bill that would remove the bar's power to pick members of the Judicial Nominating Commission: 

    "All JNC members would become political appointees of the governor, the speaker of House and president pro tem of the Senate, essentially placing judges into a patronage system.
    Removing lawyers, who are elected to the JNC by their peers in the Oklahoma Bar Association from each congressional district, makes absolutely no sense and creates a politically imbalanced panel."

    I disagree with this for reasons articulated here and here
    In Oklahoma, as in Missouri and Kansas, the issue basically comes down to bar politics vs. democratic politics.

    Tuesday, April 22, 2014

    New Jersey Judicial Selection

    The Politics of Reappointing a Sitting Judge


    According to Record columnist Charles Stiles, New Jersey Governor Chris Christie is thinking about "dumping" New Jersey chief justice Stuart Rabner, "former friend and co-worker, from the Supreme Court in June."

    "Christie has depicted Rabner’s court as the poster child of the liberal, 'activist' court he’s determined to change."

    Stiles writes: "Christie may be using Rabner’s renomination as leverage in negotiations with Democratic Senate President Stephen Sweeney, who has clashed with Christie over the partisan balance of the court. Sweeney has refused to schedule confirmation hearings on Christie’s last two nominees, arguing that the governor is trying to upend the traditional 4-3 partisan balance of the court."

    Saturday, April 19, 2014

    Oklahoma Judicial Selection Reform Continues to Progress

    Oklahoma May Democratize its Judicial Nominating Commission

    Latest from the Tulsa World explains:

    "Currently, the six attorneys are elected to seats on the commission by members of the Oklahoma Bar Association. But a measure passed by the House Rules Committee would allow the speaker of the state House to appoint three of the attorneys and the president pro tem of the Senate to appoint three."

    Previous week's update on Oklahoma judicial selection

    Change to Virginia Judicial Selection?

    Virginia one of only two states in which legislature selects top judges


    Virginia and South Carolina are the only two states in which the legislature alone selects the state's highest court.  In about a dozen states the legislature, or one of house of it, shares the power to select the supreme court, with the governor and perhaps a nominating commission having some power as well.

    This piece from the Virginian Pilot argues that Virginia's system "means judicial appointments can become patronage positions. Petty political disputes result in appointment holdups that burden the system. Qualified candidates face battles over issues irrelevant to their ability to serve."

    The Pilot's editorial concludes "More than 30 other states have instituted hybrid systems in which a commission vets judicial candidates and then makes recommendations to the governor for appointment. Virginia should consider something similar."  The descriptive problem with this statement is that it overstates the number of states and the normative problem with this statement is that it lumps together states in with and without senate confirmation and states with and without special powers for the bar. 
     

    Monday, April 14, 2014

    Alaska Judicial Selection Reform Stopped

    Bill Raftery reports that this year's effort to reduce the role of the bar on the Alaska Judicial Council  "appears dead."

    Wednesday, April 9, 2014

    British Perspective on Political Accountability of Judges

    "Is There a Case for Greater Legislative Involvement in the Judicial Appointments Process?"


    The Study of Parliament Group Paper No. 3, London by Alexander Horne.


    It's abstract says "the UK’s top court is more frequently determining essentially socio-political questions. In the light of this expanding judicial role, this paper asks whether new mechanisms for increasing political accountability, such as a parliamentary confirmation procedure, are needed for appointment to the most senior judicial offices (including, but not limited to, the UK Supreme Court)."

    "The research examines whether new methods of accountability could be introduced in the UK without impacting on judicial independence."

    Tuesday, April 8, 2014

    Oklahoma Senate Passes Bill to Reduce Bar's Role on Nominating Commission

    SB 1988 as Bill Raftery summarizes would "vacate all current judicial nomination commission members selected by Oklahoma State bar" and end "the Oklahoma Bar’s power to name any future attorney members to judicial nominating commissions and provides instead the House and Senate leaders are to name the attorney members."  Sounds like a bill to bring democratic legitimacy to the nominating commission process often called Missouri Plan or merit selection.  Unsurprisingly, the bar is opposed to a reduction in its power:  "Reforms are not needed for a system attorneys and judges said is not broken."

    Monday, April 7, 2014

    Important North Carolina Supreme Court Races

    Four of the seven seats on the North Carolina Supreme Court are up for election this year.

    This passage from the News Observer gives a flavor for some non-partisan judicial elections:

     "Lewis, an N.C. Central University law school alumna who has clerked for Democrat Dan Blue when he was speaker of the N.C. House of Representatives, campaigns as a Republican in the nonpartisan race...Though judicial races are nonpartisan, the field of three will be narrowed during the primary election.  Republican Party leaders have said they are considering endorsing candidates this year in the statewide judicial races."

    Read more here: http://www.newsobserver.com/2014/04/04/3759010/nc-supreme-court-races-draw-political.html#storylink=cpy

    Saturday, April 5, 2014

    Thursday, April 3, 2014

    Mandatory Retirement Age for Louisiana Judges

    Bill Raftery at Gavel to Gavel reports that the Louisiana Senate has voted to eliminate the mandatory retirement age for judges.

    For what it's worth, I think judges can be too old or too young.  I think we should try to get judges with the wisdom that comes from experience, but who are still young enough to be mentally sharp and hard working. Perhaps the ideal ages for judges are from about 50 to 70.  Sure, some younger than that are ready and some older than that are still sharp.  But minimum and maximum ages may do more good than harm overall.

    Tuesday, April 1, 2014

    Individual Senators Can Block Confirmation of Federal Judicial Nominees

    The New York Times editorializes against the blue slip, the practice by which individual senators can block confirmation of federal judicial nominees


    Year-end analysis by Russell Wheeler of Brookings:  "Judiciary Committee chair Patrick Leahy rigorously honors a committee tradition of not processing nominees who are opposed by either home-state senator [blue slip].  It is thus pointless for the administration to send the Senate a nominee without those senators’ assurances they will not block the nomination." 

    The NYTimes says of the blue slip: "It’s a form of senatorial courtesy that goes back to 1917 or so, giving senators an anti-democratic power never contemplated in the Constitution."

    Monday, March 31, 2014

    Rhode Island Judicial Nominating Commission

    The Providence Journal reports the law governing the Judicial Nominating Commission sets out that “no person shall be appointed at any time to serve more than one term” on the commission.  Yet Governor Chafee’s latest appointee to the commission, D. Faye Sanders, previously served on the commission.  Chafee selected Sanders in January from a list provided by Senate Minority Leader Dennis Algiere.  “At the end of the day, I was having trouble finding people willing to serve,” Algiere said.

    Friday, March 28, 2014

    New Jersey Judicial Selection

    New Jersey Supreme Court justices are nominated by the governor and confirmed by the Senate for an initial 7-year term, after which the governor may renominate the justice, subject to Senate consent, for a position until age 70.

    According to the Philadelphia Inquirer:

    [Chief Justice Stuart] Rabner's seven-year term ends in June, and [Governor Chris] Christie has not announced plans to renominate him. While the Republican governor hasn't said he will remove Rabner, a Democrat, he has spoken of a need to reshape the state's high court, which he decries as "out of control" and unaccountable to the public. Last summer, he publicly criticized one of Rabner's decisions.

    Christie previously bucked decades of precedent by taking two other justices off the court, sparking protest from the legal community and legislative Democrats.

    In 2010, Christie did not renominate John Wallace, a Gloucester County Democrat and the court's only African American. It was the first time in modern history that a sitting justice had not been granted tenure. Rabner issued a statement to judges saying he was disappointed by the decision. Christie has since repeated the move with a Republican, Helen Hoens.
    The Wallace decision set off a war with the Democratic-controlled Senate, which has blocked most of Christie's high court appointments, resulting in two vacancies.

    Florida, Minnesota and Alaska Judicial Selection Bills

    These various bills summarized by Bill Raftery seem generally to fit a pattern of Red State Republicans pushing for more democratic judicial selection methods while Blue State Democrats push for more lawyer-controlled judicial selection methods.

    Friday, March 21, 2014

    Chief Justice Accuses Legislators of Tying Court Funding to Judicial Selection Bill

    Kansas Chief Justice Lawton Nuss writes in today's Lawrence Journal World that legislators told the Kansas Bar Association and Kansas District Judges Association that if they supported a bill to reform the Kansas Supreme Court selection process, that would "would induce the Legislature to give judicial branch employees their first pay raise in more than four years."

    Chief Justice Nuss adds "I told our 1500 employees that while the justices supported the pay raises, we opposed the trade. Later, one of the crafting legislators publicly denied any linkage between the overdue pay raises and selection of justices and demanded my apology."

    Thursday, March 20, 2014

    Minnesota Bill to Change from Elected Judges to Nominating Commission

    Minnesota Judicial Selection

    Law and Culture


    The Star Tribune explains that "Currently, most judges do come into office by gubernatorial appointment, but there are rare elections for open seats without an appointee. Once in office, judges stand for re-election and can be challenged by opponents. Most run unopposed."  This has always struck me as part of the "Minnesota nice" culture.  Although officially Minnesota's high court has elections, it seems common for judges to retire mid-term which gives the governor an opportunity to appoint a judge to fill the unexpired term.  Then that incumbent runs un-opposed in the next election.  Contested elections seem to be more common at the supreme court level but the the incumbent usually wins handily and the closest in 2012 was a 12 point victory for incumbent Justice David Stras.  

    Mandatory Retirement

    Some mid-term judicial retirements seem due to the mandatory retirement age statute, which requires judges to leave the bench at the end of the month they turn 70, as opposed to at the end of the term. See Minnesota Code sections 490.125 and 490.121(21)(d)

    A bill to move from this system to a Missouri Plan, nominating commission system advanced out of a senate subcommittee. 

    For more on Minnesota judicial selection, see here